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Hyslop v Chief Executive of the Department of Corrections [2021] NZHC 2719 (11 October 2021)

Last Updated: 14 October 2021

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 11 October 2021 at 3 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

HYSLOP v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2021] NZHC 2719 [11

October 2021]

• [1] On 7 October 2021, Glen Michael Hyslop filed an application for a writ of habeas corpus. He says he is unlawfully detained and held at Christchurch Men’s Prison. Given the precedence such applications must be given under s 9 of the Habeas Corpus Act 2001, I set the matter down for hearing on Monday, 11 October 2021.

• [2] Ms Boshier, for the Chief Executive of the Department of Corrections, filed submissions in opposition on 8 October 2021. In them she confirmed that Mr Hyslop faces a charge (CRN19009502939) of breaching the conditions of a sentence of intensive supervision and, on 30 September 2021, he was remanded in custody by District Court Judge Hix in relation to this charge. His next appearance is scheduled to be in the Christchurch District Court on 3 November 2021.

• [3] At this morning’s hearing, Mr Hyslop appeared by VMR. He initially raised a query because he thought counsel, Mr Peter Martin from Auckland, might be able to appear on his behalf. I briefly discussed whether he wished to proceed making submissions on his own behalf, or whether he wanted to follow up on whether counsel could appear, and he confirmed he wished to make submissions himself. On that basis the hearing proceeded.

Habeas Corpus – legal principles

• [4] An application for a writ of habeas corpus is an application to challenge the legality of a person’s detention.

• [5] If the respondent fails to establish that the detention of the applicant is lawful, the High Court must grant, as a matter of right, a writ of habeas corpus ordering the release of the detained person from detention.¹ If granted, the High Court’s writ of habeas corpus commands the respondent, or other person in whose custody the person is alleged to be detained, to immediately release the named person from custody.

¹ Habeas Corpus Act 2001, s 14(1).

• [6] The focus of this Court’s inquiry on an application for habeas corpus is whether the applicant is being unlawfully detained. The onus is on the respondent to justify the detention, but the existence of a warrant of detention has an important effect. In Bennett v Superintendent Rimutaka Prison, the Court of Appeal said:²

In practice, once a prison superintendent or other official named as respondent produces a committal warrant or other authorisation ... it would then be necessary for an applicant for habeas corpus to demonstrate that the documentation did not in fact provide a lawful justification in the particular circumstances.

• [7] An application for habeas corpus is not a means to call into question a ruling as to bail by a Court of competent jurisdiction.³

This application

• [8] Mr Hyslop’s submissions on why he was unlawfully detained were wide-ranging. His first submission was that the warrant was in “dead letter text”. It capitalised his last name and this, in Mr Hyslop’s submission, meant it did not refer to him, as he is an individual, living man.

• [9] His next point was that his imprisonment was “slavery through an estate in trust”. When asked to elaborate what he meant by this, he said he understood the Department of Corrections makes “six trillion dollars a year”, and it is therefore profiting from his incarceration even though he has not yet been sentenced.

• [10] His third ground of challenge listed a number of allegations of ill treatment and inappropriate medical care. These included:

(a) shining a light in his eyes at night-time;

(b) poisoning his water with the inclusion of fluoride, which led to him having diarrhea;

(c) refusing him his medication for asthma;

² Bennett v Superintendent Rimutaka Prison [2001] NZCA 286; [2002] 1 NZLR 616 (CA) at [70].

³ Habeas Corpus Act, s 14(2)(b).

(d) not sending him a “lawful notice” of a change in a Court date (it is not clear what date this was in relation to);

(e) failing to file his application for a writ of habeas corpus for two days, as he prepared it on Tuesday, but it was not filed in Court until Thursday;

(f) failing to provide him with prison clothing until several days after his arrival in prison; and

(g) failing to provide him with the medication he requires because he has had a gastric bypass.

• [11] Finally, he made a general allegation that the Judges were “racketeering”, breaching their code of conduct, and making him face double jeopardy. He did not elaborate on any of these allegations.

• [12] In his reply, he asserted that he completed his sentence of intensive supervision in March last year, although that, of course, will be a submission that he can make when defending the charge.

Discussion

• [13] There is no merit in the submission that the way Mr Hyslop’s name is recorded on the warrant for detention can have any effect on its lawfulness.

• [14] Similarly, the implausible submission that the Department of Corrections is a profit making exercise, is immaterial to the lawfulness of a warrant issued in the District Court. They are separate entities. As was said in Manuel v Superintendent of Hawkes Bay Regional Prison:⁴

⁴ Manuel v Superintendent of Hawkes Bay Regional Prison [2005] 1 NZLR 161 (CA).

[49] A person who detains another can fairly be expected to establish, effectively on demand, the legal justification for the detention. In cases involving imprisonment or other statutory confinements, this will involve the production of a relevant warrant or warrants or other documents which provide the basis for the detention. We accept that apparently regular warrants (or other similar documents) will not always be a decisive answer to a habeas corpus application. But it will be a rare case, we think, where the habeas corpus procedures will permit the Court to inquire into challenges on administrative law grounds to decisions which lie upstream of apparently regular warrants. This is particularly likely to be the case where the decision maker is not the detaining party.

• [15] In this case, the decision was made by the District Court and the Department of Corrections is simply detaining Mr Hyslop pursuant to that authority.

• [16] Mr Hyslop made a number of allegations of wrongful treatment by the Department of Corrections including failure to provide him necessary medication for his medical conditions and poisoning him with fluoridated water. It was impossible to determine whether there was any substance to these allegations (though I reject outright that if he was given fluoridated water, that could be the subject of criticism). However, if there is substance to any of these complaints, that is a matter to be taken up with the Department of Corrections itself, through its internal complaints procedures, or through the external oversight of the Ombudsman or the Courts. As was said in Bennett, “[n]or, if an inmate is unlawfully treated while detained, is the detention itself rendered unlawful. The remedy is the cessation of the unlawful element, not the cessation of the detention”.⁵

• [17] The same response applies to the alleged failures to assist Mr Hyslop with filing his application for a writ of habeas corpus or any other failure by the Department of Corrections to support him in his legal endeavours.

• [18] Finally, if Mr Hyslop believes he is not in breach of his sentence of intensive supervision, he can raise those arguments when defending the charge. The application for a writ of habeas corpus is not the appropriate forum to determine whether the charge on which he is detained, is proven or not.

⁵ Bennett v Superintendent Rimutaka Prison, above n 2, at [62].

• [19] For all these reasons, I am satisfied that the warrant which was issued to detain Mr Hyslop on 30 September 2021 is a complete answer to his application for a writ of habeas corpus. For that reason, I declined to issue the writ, as I advised in Court this morning.

Solicitors:

Raymond Donnelly & Co., Christchurch

Copy To: Mr Hyslop